Cellincom Communications Limited v Carlcare Services Limited (Cause 109 of 2024) [2025] KEELRC 1262 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the dispute falls within the jurisdiction of the Employment and Labour Relations Court
The court lacks jurisdiction because the relationship between the parties is commercial, not employment
The court's jurisdiction under article 162(2) and section 12 of the ELRC Act is confined to employment and labour relations matters. Under the Employment Act, an employee is one employed for wages or salary. The agreement provided for payment of service charge upon invoicing, sourcing of spare parts from the Respondent and payment of a deposit — features inconsistent with employment and consistent with a commercial contract.
Whether the court could transfer the suit to the High Court or invoke article 159 to cure the jurisdictional defect
No — a court without jurisdiction cannot transfer a matter; a suit filed in the wrong court is a nullity and article 159 does not apply to jurisdictional objections
If jurisdiction is absent, the court can do nothing in the matter, including ordering transfer. Following Equity Bank v Bruce Mutie Mutuku and Private Development Co. Ltd v Rebecca Ngonyo, a suit filed in the wrong court is a nullity. Article 159 addresses procedural technicalities, but a jurisdictional objection is not a mere procedural technicality.
Effect of the parties' choice of Hong Kong law and Hong Kong International Arbitration Centre as the dispute resolution forum
The Claimant cannot overlook the contractual clauses choosing Hong Kong law and arbitration and invoke Kenyan law before this court
The parties executed an After Service Agreement designating Hong Kong law as governing law and the Hong Kong International Arbitration Centre as the seat for dispute resolution. Having agreed to those clauses, the Claimant is not entitled to ignore them and present the dispute to this court under Kenyan law.
Legal principles established
#- A court without jurisdiction must down its tools immediately
- For an employment relation to exist, services must be rendered in return for a salary or wage; remuneration by service charge upon invoicing indicates a commercial relationship
- A suit filed in a court without jurisdiction is a nullity and there is nothing to transfer
- Article 159 of the Constitution cannot be invoked to circumvent a jurisdictional objection, which is not a mere procedural technicality
Court orders
#- 1.The suit is struck out
- 2.Costs to the Respondent
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya read with section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cellincom Communications Limited v Carlcare Services Limited (Cause 109 of 2024) [2025] KEELRC 1262 (KLR)", Case Analysis (2025). Cause No 109 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1262/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.